The purpose of this framework decision is to combat drug trafficking so as to limit the supply and consumption of drugs. It lays down minimum rules to be observed and minimum penalties to be applied by European Union (EU) countries. The framework decision lists punishable acts relating to drug trafficking and obliges EU countries to take measures against natural persons involved in such trafficking.

ACT

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

SUMMARY

This framework decision lays down minimum provisions on criminal acts and the penalties applicable to drug trafficking.

Offences

The framework decision requires each European Union (EU) country to take the necessary measures to sanction all intentional behaviour relating to the trafficking in drugs and precursors.

"Drugs" are defined as any substances covered by the 1961 United Nations (UN) Convention on Narcotic Drugs or the 1971 UN Convention on Psychotropic Substances or as any substances subject to controls under Joint Action 97/396/JHA. Precursors are substances used to produce legal products such as medicines, but that can also be used to produce illicit drugs. They are classified in EU law on the basis of Article 12 of the 1988 UN Convention.

Acts linked to drug trafficking include production, manufacture, extraction, sale, transport, importation and exportation. Possession and purchase with a view to engaging in activities linked with drug trafficking are also taken into account, as are the manufacture, transport and distribution of precursors. Incitement to drug trafficking, aiding and abetting such activity, and attempting to traffic in drugs are regarded as offences.

However, this framework decision does not cover activities relating to the trafficking in drugs for personal consumption.

Liability of legal persons

The framework decision requires EU countries to take measures to ensure that legal persons can be held to account for offences linked with trafficking in drugs and precursors, as well as for aiding and abetting, inciting or attempting such activity. The concept of legal persons as used here does not include states and public bodies in the exercise of their powers or public international organisations.

An organisation is liable if the offence is committed by an individual who has a leading position within that organisation. It is also held responsible for shortcomings in supervision or control. However, the liability of legal persons does not exclude criminal proceedings against natural persons.

Sanctions

The framework decision requires EU countries to take the necessary measures to ensure that offences are subject to effective, proportionate and dissuasive penalties.

If an offence is committed in whole or in part within an EU country’s territory, that country must take measures, provided that the offender is one of its nationals or that the offence was committed for the benefit of a legal person established within its territory.

The maximum penalties for minor offences must be at least between one and three years’ imprisonment. EU countries must also take the necessary measures to confiscate substances used to commit offences.

Maximum penalties must be at least between five and ten years of deprivation of liberty in cases where the offence:

involves large quantities of drugs;

involves those drugs that are most harmful to health;

is committed within the framework of a criminal organisation.

However, penalties may be reduced if the offender renounces his illegal activities and provides information to the administrative or legal authorities that will help identify other offenders.

Sanctions for legal persons must include fines for criminal or non-criminal offences. Other sanctions may also be imposed, including placing the establishment under judicial supervision or closing it temporarily or permanently.

Background

This framework decision follows up the conclusions of the 1999 Tampere European Council, which called on EU countries to adopt additional legal provisions to combat trafficking in narcotic drugs and psychotropic substances. The EU action plan to combat drugs (2000-04) also called for measures to introduce minimum provisions on the constituent elements of criminal acts and penalties on drug trafficking.

Report from the Commission of 10 December 2009 on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [COM(2009) 669 final – Not published in the Official Journal].
In line with the requirements of Framework Decision 2004/757/JHA, this report evaluates its application by EU countries. However, six EU countries had failed to report on their transposition measures by the deadline.

Compliance with the provisions of the framework decision is problematic, in particular as regards:

crimes linked to trafficking in drugs;

passive liability of and sanctions for legal persons;

jurisdiction in cases where the offence is committed outside an EU country for the benefit of a legal person established in the territory of that country.

While national legislations can be considered to be in line with the requirements of the framework decision regarding penalties, these differ greatly from one EU country to another and are, in general, much higher than those established by the framework decision.

On the whole, the framework decision has resulted in little changes to the national legislations of EU countries. Consequently, the Commission is calling on those EU countries that provided no information or incomplete information to report back on their transposition measures.